12 Fla. L. Weekly Supp. 567a
Insurance — Personal injury protection — Coverage — Medical expenses — Exhaustion of policy limits — Subsequent claim for unpaid portion of bills — Where initial timely submission of bill to insurer prior to exhaustion of policy limits sufficiently placed insurer on notice that litigation may ensue if bill was not paid in full, insurer paid bill at reduced amount, and medical provider filed suit for unpaid portion of bill after policy limits were exhausted but prior to expiration of statute of limitations for breach of contract action, genuine issue of material fact as to whether provider’s charges were unreasonable or unnecessary prevents entry of summary judgment in favor of insurer
SPINE & REHAB MEDICINE, P.A., (as assignee of PETER BARBEE), Plaintiff, vs. MERCURY INSURANCE COMPANY OF FLORIDA, Defendant. County Court, 5th Judicial Circuit in and for Hernando County, Civil Division. Case No. H-27-SP-2004-000673. January 26, 2005. Donald Scaglione, Judge. Counsel: Michael J. Morelli, Michael J. Morelli, P.A., Tampa, for Plaintiff. Randall A. Wainoris, Haas, Dutton, Blackburn, Lewis & Longley, Tampa, for Defendant.
ORDER ON DEFENDANT’S MOTION FOR FINAL SUMMARY JUDGMENT
THIS CAUSE, having come before this Court on October 29, 2004, on Defendant’s Motion for Final Summary Judgment, and this Court having heard argument from counsel for both parties, and being otherwise fully advised in the premises, it is hereby ORDERED AND ADJUDGED as follows:
1. Defendant’s Motion for Final Summary Judgment is DENIED;
2. Counsel for both parties stipulated that the bill that is at issue in this matter, for date of service July 16, 2003, was timely and properly submitted by Plaintiff to Defendant, and received by Defendant, prior to Defendant’s exhaustion of benefits under the Assignor’s/Claimant’s applicable policy of insurance that was issued by Defendant;
3. Counsel for both parties stipulated that this lawsuit was filed by Plaintiff after the date that Defendant had exhausted all PIP benefits under the Assignor’s/Claimant’s applicable policy of insurance that was issued by Defendant;
4. Counsel for both parties stipulated that Florida Statute §95.11 provides for a five (5) year Statute of Limitations for the bringing of a breach of contract action;
5. Counsel for both parties stipulated that Plaintiff filed this lawsuit prior to the expiration of the five (5) year Statute of Limitations for the bringing of a breach of contract action in Florida;
6. Counsel for both parties stipulated that there is binding case law that provides that bills submitted by medical providers, such as Plaintiff in this matter, pursuant to the Florida No-Fault Statute, specifically Florida Statute §627.736, must be paid in the order that they are received, under the theory of “first in time, first in right”;
7. Counsel for Defendant stipulated that there were PIP benefits still available under the Assignor’s/Claimant’s policy of insurance, issued by Defendant, at the time when the bill for date of service July 16, 2003 was timely and properly submitted by Plaintiff to Defendant;
8. Counsel for Defendant admitted that Defendant received Plaintiff’s Assignment of Benefits that contained a specific escrow request by Plaintiff regarding “disputed sums”, which was attached as Exhibit “A” to Plaintiff’s Complaint, and that Defendant is not disputing that Plaintiff has legal standing to maintain this cause of action;
9. Counsel for both parties stipulated that Defendant reduced, and paid at a lesser amount, the bill submitted by Plaintiff that is at issue in this matter for date of service July 16, 2003, pursuant to a recommendation from the Mitchell computer software program;
10. This Court finds that the initial timely submission of the July 16, 2003 bill submitted by Plaintiff to Defendant sufficiently placed Defendant on notice that litigation may ensue if the bill was not paid at the full amount billed by Plaintiff;
11. This Court finds that the case law submitted by Defendant in support of its Motion for Final Summary Judgment is not binding on this Court, and this Court does not find that the case law submitted by the Defendant at the Summary Judgment hearing to be persuasive authority that would allow Final Summary Judgment to be entered against Plaintiff, and in favor of Defendant;
12. This Court acknowledges and finds that the binding published case law of Yvette Johnson-Fleming v. Allstate Ins. Co., 11 Fla. L. Weekly Supp. 1a (Fla. 5th Cir. Ct. App., September 26, 2003), cited by counsel for Plaintiff, stands for the proposition that it is error for Summary Judgment to be entered in favor of the insurer based on exhaustion of benefits where an insurer denies coverage for a “reasonable and necessary” medical service, and then continues to pay bills submitted by other medical providers up until the point of exhaustion;
13. This Court acknowledges, and counsel for both parties stipulate, that the binding published case law of Yvette Johnson-Fleming v. Allstate Ins., Co., 11 Fla. L. Weekly Supp. 1a (Fla. 5th Cir. Ct. App., September 26, 2003), cited by counsel for Plaintiff, is distinguishable from the instant case, in that the exhaustion of benefits in the Johnson-Fleming case occurred after suit was filed, while the exhaustion of benefits in this lawsuit occurred prior to when the suit was filed;
14. This Court finds that Plaintiff timely filed this lawsuit prior to the expiration of the five (5) year Statute of Limitations for the bringing of a breach of contract action in Florida, as mandated by Florida Statute §95.11;
15. This Court finds that whether or not Plaintiff’s charges for date of service July 16, 2003 are unreasonable and/or unnecessary is a question of fact for the jury to determine, thereby preventing entry, and the granting, of Defendant’s Motion for Final Summary Judgment;
16. As such, this Court finds that there are genuine issues of material fact that exist which prevent the granting of Defendant’s Motion for Final Summary Judgment in this matter.
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